Compensation Lawsuit for Doctor's Error (Malpractice)

Medical malpractice refers to a situation where a physician or healthcare institution acts contrary to medical standards during a patient's treatment, resulting in harm to the patient. This can occur due to a physician's error or negligence, or due to inadequate or incorrect equipment or organization by the health institution. According to Article 13 of the Medical Profession Ethics Rules, "Harm to a patient due to ignorance, inexperience, or indifference constitutes 'malpractice' in medicine."

The content of this article includes:

• What is Medical Malpractice (Malpractice)? What are the Conditions for a Compensation Lawsuit?

• The Difference Between Complications and Physician Error

• During the diagnosis phase

• During the treatment phase

• During the intervention phase

• Consultation and Stabilization

• Legal Bases for the Liability of a Physician to Pay Compensation

• Compensation Lawsuit Process

• Material and Moral Compensation

• How to File a Malpractice Lawsuit?

• Statute of Limitations for Compensation Lawsuits

In cases of malpractice arising from a doctor's negligence or execution errors, legal/criminal responsibility can be attributed to the involved doctor. Doctors must properly inform the patient about the medical procedure and, if necessary, obtain consent through a signed form.

Filing a malpractice lawsuit does not eliminate the physician's criminal liability. If a physician intentionally or negligently causes injury or death to a patient while practicing medicine, they may be subject to criminal prosecution under the relevant provisions of the Turkish Penal Code.

The criminal responsibility of a physician is assessed independently of the compensation lawsuit. To determine a physician's criminal liability, a complaint must be filed with the prosecutor's office.

The Medical Profession Ethics Code, prepared by the Turkish Medical Association, is not a law but a document outlining the rules a physician must follow while practicing. While these ethics rules define a physician's professional care obligation, they do not directly affect the physician's criminal liability, which is determined according to the Turkish Penal Code.

There are several important considerations to note:

DIFFERENTIATION BETWEEN COMPLICATIONS AND DOCTOR ERROR

Complications can arise during any medical activity, either during the initial intervention or afterwards, depending on the patient's health condition and the circumstances. All medical procedures and activities carry some risk for the patient's health, which can vary in magnitude. Doctors are not legally or criminally liable for unavoidable and unforeseeable risks and complications that may result in patient discomfort or death.

The physician's responsibility can be invoked in cases such as inadequate examination during the diagnosis phase, failure to provide necessary tests, insufficient collection of the patient's past information (anamnesis) during the treatment phase, or administration of incorrect medical interventions or treatments.

During the treatment phase, the physician's responsibility may arise from situations such as incomplete or incorrect medical intervention, choosing the wrong treatment method, injecting incorrect or excessive doses of medication, or performing a procedure on the wrong limb or organ.

The responsibility for ensuring qualified personnel are available to use necessary machines and equipment during the treatment or recovery phase falls on the administration. According to the principle of honesty (Turkish Civil Code Article 2), cases where patients are subjected to incorrect or incomplete treatment and subsequently suffer complications, the failure to fulfill organizational obligations becomes evident.

Consultation refers to the scientific and technical assistance or advice a physician receives from another physician specializing in a different field. According to the Turkish Medical Association, consultation involves a physician seeking assistance from another physician for the examination, diagnosis, treatment, and ongoing care of a patient.

The physician can be held responsible if consultation is needed but not conducted, leading to patient discomfort. Post-treatment stabilization of the patient, i.e., maintaining the patient's health condition in a stable state until full recovery or transfer, is also crucial.

LEGAL GROUNDS FOR A PHYSICIAN'S LIABILITY TO PAY COMPENSATION

Article 49 of the Turkish Code of Obligations regulates liability for wrongful acts. According to this article, a person who damages someone else's property or person is liable for compensating the damage. Medical malpractice, being a wrongful act, is subject to the provisions of this article. Article 52 of the Code of Obligations specifies the conditions for liability in wrongful acts:

• Wrongfulness: The wrongful act must be legally impermissible. Medical malpractice, being contrary to medical standards, is considered a wrongful act.

• Fault: The wrongful act must result from the perpetrator's fault. In cases of medical malpractice, this condition is met as it arises from the fault of the physician or healthcare institution.

• Damage: The wrongful act must cause damage. Medical malpractice can harm the patient's physical or psychological health, thus fulfilling this condition.

• Causation: There must be a relationship between the wrongful act and the damage caused. In medical malpractice, the relationship exists between the physician or healthcare institution and the patient, meeting this condition.

Additionally, a contractual relationship defining the general framework of the treatment and medical intervention to be performed on the patient is essential between the patient and the doctor, except in emergency interventions. This contractual relationship is seen as an agency contract and a contract for work.

A contract for work involves medical applications or treatments intended to create a work on the patient's body. Generally, beauty treatments fall under this category.

An agency contract defines the legal status between the doctor and the patient. The patient is in the position of the principal, and the doctor is the agent. Here, the doctor, as the agent, is obliged to fulfill the duty of care during the diagnosis, intervention, and treatment processes. The crucial point is not the complete recovery of the patient but the doctor's effort to bring the patient to the most stable condition possible with the capabilities of medicine.

COMPENSATION LAWSUIT PROCESS

Types of Compensation

Patients or their relatives filing a malpractice lawsuit can demand material and moral compensation from the physician. Material compensation addresses the concrete damages suffered by the patient, while moral compensation is a monetary amount the physician must pay to compensate for the abstract damages to the patient's personal rights. The amount of compensation is determined by the court, considering factors such as the nature and severity of the patient's damage, the degree of the physician's fault, and the economic situation of the parties.

Material compensation can include:

• Medical expenses (surgery, medication, tests, etc.)

• Loss of income during periods of incapacity due to disability

• Reductions due to permanent disability

• Expenses due to permanent pain and suffering...

Moral compensation is paid for the pain, grief, and distress caused by the violation of personal rights. The court determines the amount of moral compensation, considering factors such as:

• The severity of the damage

• The social and economic status of the patient

• The patient's personal characteristics...

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In determining the compensation amount in a malpractice lawsuit, the court considers factors like the severity of the damage and the patient's social and economic status.

HOW TO FILE A MALPRACTICE LAWSUIT?

The procedure for filing a malpractice compensation lawsuit varies depending on whether the treatment occurred in a private or public hospital. In cases of alleged malpractice in a public hospital, an application must first be made to the administration, followed by a full jurisdiction lawsuit in the administrative court if the application is rejected. In cases of alleged malpractice in a private hospital, a legal lawsuit must be filed in the consumer court. In malpractice cases in public hospitals, an application must first be made to the relevant administration.

STATUTE OF LIMITATIONS FOR COMPENSATION LAWSUITS

Applications for material or moral compensation must be made within one year from the date the doctor's error or damage is discovered, and in any case, within five years. If the administration partially or fully rejects the application, the parties must file a full jurisdiction lawsuit in the Administrative Court within 60 days of the notification date. If the administration does not respond to the application within 30 days, it is considered an implicit rejection, and the 60-day period starts. The extended statute of limitations in criminal law does not apply in lawsuits against the administration.

Malpractice lawsuits against private hospitals and doctors for wrongful acts are subject to a two-year statute of limitations from the date the damage and the liable party are discovered, and in any case, a ten-year statute of limitations. If the compensation arises from an act that requires a penalty under criminal law, the statute of limitations for the criminal case applies. However, the statute of limitations is five years for lawsuits against private hospitals based on contract for work or agency contract. For malpractice lawsuits filed for unauthorized actions without prior consent or approval from the patient, the statute of limitations is ten years.

This article is for informational purposes only.